By James LeDoux
Introduction
What do Madagascar, the Czech Republic, Kaduna State in Nigeria, and Louisiana have in common? While it may be tempting to point to festive traditions like Mardi Gras, the connection is more sobering: each of these jurisdictions has, at some point, enacted or permitted laws authorizing surgical castration as a penalty for individuals convicted of certain sexual offenses, including rape.[1] In June 2024, Governor Jeff Landry signed Act 651, Louisiana’s surgical castration law, which went into effect on August 1, 2024.[2] Since its enactment, this new punishment has caused controversy among the legal community and activist groups. If—or when—a claim is brought under this statute, opposers will undoubtedly meet it with a multitude of challenges.[3]
I. Background and Legislative History
According to the Louisiana Foundation Against Sexual Assault, one in four girls and one in six boys will suffer sexual abuse or misconduct by his or her 18th birthday.[4] Consequently, Senator Regina Barrow of Baton Rouge and Representative Delisha Boyd of New Orleans co‑authored the Bill enacting a new surgical castration punishment.[5] The Bill sought to correct the past failure of state law to protect children from sexual crimes.[6] The Bill passed all of Louisiana’s legislative chambers with at least 70% voting in the Bill’s favor at each level.[7] Given this high percentage, it is safe to say that the legislature heavily favored this law.
Louisiana’s surgical castration law may trigger questions involving the details of surgical castration and why it is controversial.[8] Louisiana law has allowed a chemical castration punishment since 2008, but courts rarely apply it.[9] Chemical castration uses pharmaceutical drugs to halt the offender’s sex drive without permanently ending it.[10] In contrast, surgical castration is more extreme as it involves the removal of the testicles or ovaries to stop the production of sex hormones.[11] This procedure greatly diminishes a person’s sex drive as the testicles or ovaries are no longer present to produce sex hormones.[12] Though tenuous, evidence shows that a diminished sex drive decreases the likelihood of the past perpetrator committing a sexual offense.[13] Louisiana legislators wrote and enacted this law to deter sex offenders from committing sexual offenses against minors by instilling fear of such an extreme punishment.[14]
Louisiana’s surgical castration law begins by asserting that if any person is convicted of certain sex offenses when the victim is under 13 years old at the time of the offense, the court may sentence the offender to be surgically castrated, on top of any other sentence imposed for the crime.[15] This statute applies to aggravated sex offenses defined under Louisiana Revised Statutes section 15:541, including aggravated rape, first‑degree rape, forcible rape, second‑degree rape, and simple rape.[16] The law further states that the Department of Public Safety and Corrections shall provide and administer the surgery using a licensed physician to perform the procedure.[17]
Louisiana Revised Statutes section 14:43.7 then declares that a sentence of surgical castration is contingent upon a court‑appointed medical expert’s determination that the offender is an appropriate candidate for the procedure.[18] The statute’s language itself does not require surgical castration when it is not medically appropriate.[19] The medical expert must make this determination within 60 days from the judge’s imposition of the sentencing.[20] Currently, there are no standards, factors, or burdens or proof to determine when surgical castration is medically appropriate.
Furthermore, § 14:43.7 asserts that this procedure must be performed no later than one week before the offender’s release from his or her correctional institution.[21] Importantly, § 14:43.7 contains a provision that essentially gives the offender a choice between having the procedure or serving more time in prison.[22] The statute states that if an offender fails to appear for his or her court‑ordered procedure, he or she shall be charged with violating this statute and upon conviction shall be sentenced to a minimum of three years and a maximum of five years imprisonment without benefit of parole, probation, or suspension of sentence.[23] The new statute ends by declaring that its provisions do not apply to offenders under the age of 17.[24]
II. Other Sovereigns with Surgical Castration
As mentioned earlier, there are three other sovereigns in the world that currently have surgical castration laws in place for sex offenders. The first to enact such a law was the Czech Republican government in 1966.[25] The Czech Republic’s law stipulates that an offender may be surgically castrated only on a voluntary basis.[26] The Czech Republic’s Ministry of Health oversees the process and must properly inform the applicant–offender of the operation, including its side effects.[27] Lastly, a panel of at least five members—including two doctors specializing in the appropriate field, a lawyer, and two other non‑specialized doctors—must approve the procedure.[28] The offender must be at least 18 years old and medically diagnosed with deviant sexual behavior associated with tendencies to commit sexually motivated offenses.[29]
In 2020, the Kaduna State in Nigeria was the next sovereign to pass a surgical castration law.[30] Kaduna’s law is notable because castration is not the offender’s only punishment—the government also will sentence the offender to death under certain circumstances.[31] Further, the law applies to offenders convicted of a broad range of sex offenses, not just those against minors.[32] For example, the law mandates surgical castration and the death penalty for anyone who rapes a child under the age of 14; surgical castration and the death penalty for offenders who engage in sexual intercourse—seemingly including statutory rape—with a male child under 14; surgical castration and the death penalty for women who rape a child; and surgical castration and life imprisonment for anyone convicted of raping a person over the age of 14.[33]
The last sovereign to pass a surgical castration law before Louisiana was Madagascar.[34] Though the Parliament passed the law in February 2024, it will be effective only when the President signs it into law.[35] Similar to Kaduna’s law, Madagascar’s version includes different sentences for rape, depending on the age of the victim.[36] First, the law sentences an offender who rapes a child under the age of 10 to mandatory surgical castration.[37] Second, the law sentences an offender who rapes a child between the ages of 10 and 13 to chemical or surgical castration.[38] Finally, the law sentences an offender who rapes a child between the ages of 14 and 17 to chemical castration.[39]
While some may view the laws of Louisiana and these other jurisdictions as severe, others regard them as justified measures aimed at preventing recidivism among sex offenders and deterring potential first-time offenses.[40] Since 1950, medical and scholarly groups in multiple countries have conducted tests to determine the effectiveness of surgical castration on sex offender recidivism.[41] A team of scholars compiled the data from these tests, which is reproduced below.[42]
The compilation’s 2,300-subject sample size is large enough to provide statistical support.[43] The highest recidivism rate for a group of sex offenders after surgical castration was 10% out of 21 subjects, while the lowest was 0% out of 60 subjects.[44] In contrast, the highest recidivism rate for a group of sex offenders who were not castrated was 52% out of 50 subjects, while the lowest was 36% out of 22 subjects.[45] Despite ongoing debate surrounding the practice, these statistics suggest that surgical castration may be effective in achieving its intended purpose.[46]
III. Challenges Louisiana’s New Law May Face
Opponents of § 14:43.7 will almost certainly challenge its constitutionality if or when it is enforced and have multiple legal avenues to do so.[47] Challengers might attack the statute’s vagueness, specifically the way in which a judge and medical expert may determine if an offender is to receive the surgery.[48] As mentioned earlier, the new law’s language states that only those a court‑appointed medical expert deems an “appropriate candidate” will be forced to receive the punishment, but fails to list any criteria or standards under which the expert is meant to operate.[49] An opponent to § 14:43.7 will also likely challenge the statute as vague under the Fifth Amendment of the United States Constitution’s Due Process Clause, which is extended to the states by the Fourteenth Amendment.[50] To avoid vagueness under the Fifth Amendment, the law must be sufficiently clear so that those enforcing the law cannot act in an arbitrary or discriminatory way.[51] In other words, the law cannot invite the judge or any others to interpret or apply the law with unchecked discretion.[52] With § 14:43.7, a challenger could argue that the language “appropriate candidate” is too vague and allows the medical expert or court too much freedom in determining if an offender is to be surgically castrated.[53] If a court finds this language to be unconstitutionally vague, it will likely strike down § 14:43.7.
If the opponents to § 14:43.7 do not prevail with the vagueness challenge, they will likely move on to the more obvious argument. Opponents often challenge the constitutionality of a crime’s punishment under the Eighth Amendment of the United States Constitution.[54] The Eighth Amendment states, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”[55] The Fourteenth Amendment’s Due Process Clause extends the Eighth Amendment to the states, and plaintiffs generally use both to challenge harsh criminal punishments.[56] Therefore, a challenge to a surgical castration law will likely invoke the Eighth Amendment’s prohibition against “cruel and unusual punishment.”[57] In Louisiana, the courts hold that a punishment is cruel and unusual if it is “barbarous, extraordinary or grossly disproportionate to the offense, those that shock the conscience of civilized men.”[58] This burden of proof falls on the plaintiff, who must prove that the punishment subjects him or her to “unreasonable risks and hazards,” thereby violating the Eighth Amendment. [59]
Even though neither the United States Supreme Court nor a Louisiana court has determined if a surgical castration law is unconstitutional, laws that provide similar punishments have not received favorable judicial treatment.[60] The U.S. Supreme Court held a statute providing for the sterilization of criminals unconstitutional for violating due process rights when applied to a habitual criminal convicted for stealing chickens and armed robbery.[61] A Nevada district court held that a statute authorizing vasectomies on male sex offenders constituted cruel and unusual punishment.[62] An Iowa district court held the same, finding its vasectomy law for men convicted of any second felony to be unconstitutional.[63] On the other hand, no court has held that chemical castration is cruel and unusual punishment.[64] Supporters of a surgical castration law may argue that the United States enforces harsher punishments than surgical castration, such as the death penalty.[65] Louisiana and 20 other states have the death penalty as a criminal punishment, including the use of lethal injection, gas inhalation, electrocution, and even a firing squad.[66] These laws have yet to be struck down as cruel and unusual punishments, which presents the argument that if enforcing the death penalty in these ways avoids the Eighth Amendment’s reach, then surgical castration should also not violate the Eighth Amendment.[67]
Conversely, some could argue that the death penalty is a punishment fitting the crime, while surgical castration is too extreme to fit certain rape crimes. Many believe that capital punishment is the proper punishment for murders: because the criminal takes a human life, he or she should lose the right to his or her life.[68] With the new statute, some may argue that the government removing the offender’s reproductive organs is too extreme to fit any rape crime, as the crime does not physically remove any organs like surgical castration.[69]
Conclusion
It might take years to see the effects of Louisiana Revised Statutes section 14:43.7, as its future is uncertain. There is no consistent data or evidence proving this new punishment will be 100% effective in preventing sex offenders from re‑offending.[70] Further, it remains unclear whether a sentencing judge or jury will even apply surgical castration before a court declares it unconstitutional. Only time will tell whether the law will achieve its intended impact. In the meantime, the Louisiana legislature may hope that enforcing surgical castration will advance its policy goal of protecting children by preventing the commission of aggravated sexual offenses.
[1] See La. Rev. Stat. § 14:43.7 (2024); see also Adekunle Rasak, UPDATE: Rapists Now for Castration as Kaduna Gov Signs Penal Code into Law, Nigerian Trib. (Sep. 16, 2020), https://tribuneonlineng.com/update-rapists-now-for-castration-as-kaduna-gov-signs-penal-code-into-law/ [https://perma.cc/79Q6-JRAM]; Sarah Tetaud, Madagascar Law Allowing Castration of Child Rapists Prompts Criticism From Rights Groups, AP News (Feb. 11, 2024, 1:04 PM), https://apnews.com/article/madagascar-castration-law-andry-rajoelina-rape-criticism-d5efb32b72e48929f95fae1e6d7baefd [https://perma.cc/55J6-TBHB]; Leo Cendrowicz, The Unkindest Cut: A Czech Solution for Sex Offenders, Time (Feb. 11, 2009, 12:00 AM), https://time.com/archive/6945671/the-unkindest-cut-a-czech-solution-for-sex-offenders/ [https://perma.cc/FT4P-YFTQ].
[2] Act. No. 651, 2024 La. Acts (codified at La. Rev. Stat. § 14:43.7 (2024)).
[3] Jeff Horchak, Louisiana’s New Surgical Castration Law Takes Effect, Fox News 15 (Aug. 1, 2024), https://www.kadn.com/news/investigates/louisianas-new-surgical-castration-law-takes-effect/article_b4d965c8-505c-11ef-9489-f3dd4d0149e2.html [https://perma.cc/YFP9-22WV].
[4] Child Sexual Abuse, Lamothe L. Firm, https://lamothefirm.com/child-sexual-abuse/ [https://perma.cc/WW33-AN67].
[5] Horchak, supra note 3.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Jaclyn Diaz, What to Know About Louisiana’s New Surgical Castration Law, NPR (July 1, 2024, 5:02 AM), https://www.npr.org/2024/07/01/nx-s1-5020686/louisiana-new-surgical-castration-law [https://perma.cc/487H-Z6LB].
[11] Surgical Castration, Nat. Cancer. Inst., https://www.cancer.gov/publications/dictionaries/cancer-terms/def/surgical-castration [https://perma.cc/BSZ2-EJHN].
[12] Sandra G. Boodman, Does Castration Stop Sex Crimes? An Old Punishment Gains New Attention, but Experts Doubt Its Value, Wash. Post (Mar. 16, 1992), https://www.washingtonpost.com/archive/lifestyle/wellness/1992/03/17/does-castration-stop-sex-crimes/34bf63ee-840c-41e4-9c5f-5ac1bcf95b15/ (positing that some men will still be able to have an erection and may even be capable of sexual intercourse).
[13] John McMillan, The Kindest Cut? Surgical Castration, Sex Offenders and Coercive Offers, 40 J. Med. Ethics 583, 584 (2013).
[14] Horchak, supra note 3.
[15] La. Rev. Stat. § 14:43.7 (A) (2024).
[16] Id. § 15:541 (2024). Louisiana Revised Statutes section 14:43.7 specifically excludes sexual battery under § 14:43.1(C)(2) and second‑degree sexual battery under § 14:43.2. Aggravated and first-degree rape are the same under § 14:42 and essentially include anal, oral, or vaginal sexual intercourse when the victim orally or physically attempts to refuse the attacker. Forcible rape and second-degree rape are the same under § 14:42.1 and essentially include anal, oral, or vaginal sexual intercourse when the victim does not give consent because he or she believes refusing will be to no avail as he or she is under a threat of violence or because he or she is under the influence of some drug administered by the attacker. Simple and third-degree rape are the same under § 14:43 and essentially include anal, oral, or vaginal sexual intercourse when the victim cannot give consent due to being under the influence of drugs or alcohol, unsoundness of mind, or because he or she believes the person committing the act is someone other than the person actually committing the act.
[17] La. Rev. Stat. § 14:43.7 (A) (2024).
[18] Id. § 14:43.7 (B)(1) (2024).
[19] Id. § 14:43.7 (C) (2024).
[20] Id. § 14:43.7 (B)(1) (2024).
[21] Id. § 14:43.7 (B)(2) (2024).
[22] Id. § 14:43.7 (B)(3) (2024).
[23] Id.
[24] Id. § 14:43.7 (D) (2024).
[25] Alexis Rosenzweig & Jan Richter, Should the Czech Republic Stop Surgically Castrating Sex Offenders?, Radio Prague Int’l (Mar. 3, 2009), https://english.radio.cz/should-czech-republic-stop-surgically-castrating-sex-offenders-8586954 [https://perma.cc/EQX2-PFNE]; Voislav Stojanovski, Surgical Castration of Sex Offenders and Its Legality: The Case of the Czech Republic, Masaryk Univ., at 11, https://www.iusetsocietas.cz/fileadmin/user_upload/Vitezne_prace/Stojanovski.pdf [https://perma.cc/S9US-JNT8] (the law was enacted through Zákon č. 20/1966 Sb. (Coll.) (Czech)).
[26] Stojanovski, supra note 25, at 11–12.
[27] Id. at 12.
[28] Id.
[29] Id.
[30] Rasak, supra note 1.
[31] Id.
[32] Id.
[33] Id. The section that includes women who rape a child does not specify an age the child must be; the law only says “child.” See id.
[34] Tetaud, supra note 1.
[35] Id.
[36] Id.
[37] Id.
[38] Id.
[39] Id.
[40] See id.; see also Horchak, supra note 3.
[41] Linda Weinberger, Shoba Sreenivasan, Thomas Garrick & Hadley Osran, The Impact of Surgical Castration on Sexual Recidivism Risk Among Sexually Violent Predatory Offenders, 33 J. Am. Acad. Psychiatry L. 16, 24 (2005).
[42] Weinberger, supra note 41, at 28.
[43] Id.
[44] Id.
[45] Id.
[46] Id; see Horchak, supra note 3.
[47] La. Rev. Stat. § 14:43.7 (2024).
[48] Id.
[49] Id.
[50] Beckles v. United States, 580 U.S. 256, 266 (2017).
[51] Id.
[52] Id.
[53] La. Rev. Stat. § 14:43.7.
[54] U.S. Const. amend. VIII.
[55] Id.
[56] See Whitley v. Albers, 475 U.S. 312 (1986) (asserting that the Fourteenth Amendment affords no greater protections for inmates as to cruel and unusual punishments than the Eighth Amendment).
[57] U.S. Const. amend. VIII.
[58] Craft v. State, 308 So. 2d 290, 295 (La. Ct. App.), writ denied, 319 So. 2d 441 (La. 1975); see also State v. Miller, 269 So. 2d 829, 962 (La. 1972).
[59] Craft, 308 So. 2d at 295.
[60] See Kenneth B. Fromson, Comment, Beyond an Eye for an Eye: Castration As an Alternative Sentencing Measure, 11 N.Y.L.S. J. Hum. Rts. 311, 311 n.1 (1994).
[61] See Skinner v. State of Okl. ex rel. Williamson, 316 U.S. 535 (1942).
[62] See Mickle v. Henrichs, 262 F. 687 (D. Nev. 1918).
[63] See Davis v. Berry, 216 F. 413 (S.D. Iowa 1914).
[64] See State v. Barton, 319 So. 3d 907 (La. Ct. App.), writ denied, 325 So. 3d 1071 (La. 2021), reconsideration denied, 325 So. 3d 1072 (La. 2021).
[65] Sarah Williams, Death Penalty Laws by State, FindLaw, https://www.findlaw.com/criminal/criminal-procedure/death-penalty-laws-by-state.html [https://perma.cc/AP8J-D397] (last updated Dec. 12, 2024).
[66] Id.
[67] Id.
[68] See Walter Berns, Defending the Death Penalty, 26 Crime & Delinquency 503 (October 1980).
[69] La. Rev. Stat. § 14:43.7.
[70] Weinberger, supra note 41, at 28.